' Bashir Ahmad through an ejectment petition sought eviction of his tenant Muhammad Siddique from the premises in dispute on grounds of (i) default in payment of rent for a period of three months, (ii) personal requirement, (iii) damage and impairment of the property. Tenant filed written statement and denied the averments contained in the eviction petition. Rent Controller framed the following issues:
(1) Whether respondent had made a valid tender of the rent for the disputed period, if so to what effect? O.P.R.
(2) Is the disputed shop bona fide required by the petitioner for his personal use? O.P.A.
(3) Whether respondent has damaged shop in question, if so, with what effect? O.P.A.
(4) Relief.
' Parties produced evidence in support of the above-stated issues. Rent Controller vide order, dated 17-10-1975 found issue No.1 in favour of the landlord while the remaining two issues relating to bona fide need and damage were answered in favour of the tenant. Consequently, the tenant was ordered to be ejected on the ground of default alone. Tenant appealed to learned District Judge, Gujrat. The appeal was entrusted for hearing and decision to Ch. Anwar Ali, learned Additional District Judge of the same District. Learned appellate Judge affirmed findings on issues No.2 and 3 and reversed the decision of Rent Controller on issue of default. Vide judgment, dated 7-7-1981, the appeal was accepted and the eviction petition was ordered to be dismissed. This order has been assailed in constitutional jurisdiction by the landlord.
2. I have heard learned counsel for the parties. Learned Counsel for the petitioner/landlord contended that the learned Additional District Judge grossly misread the record and has not applied his mind independently to the questions raised before him. No finding on issue No.3 has been recorded. As regards issue No.2, it is stated that the learned appellate Judge disposed of the appeal with the following observations: "Anyhow, from the evidence produced on record the fact of the requirement for personal use in good faith does not stand proved because there is the solitary statement of the landlord to this effect. For these reasons the findings of the learned Rent Controller on issue No.2 are confirmed."
3. Learned counsel contended that the above statement made basis for disallowing the plea of self-requirement, was against the record. Apart from his own statement, the landlord had produced two witnesses. i.e. A.W.1 Hassan Muhammad and A.W. 3 Karam Din. It is contended that the view of law taken by the learned Additional District Judge stating that the solitary statement of the landlord was insufficient is not in conformity with the judicial pronouncements of the superior Courts and section 134 of the Evidence Act. Learned Counsel submitted that the emphasis in law is laid on the quality of evidence and not on its quantity and the rule of law stated by learned Additional District Judge that the solitary statement of landlord was insufficient to prove bona fide personal need, was obviously erroneous. Statement of landlord coupled with the safeguards provided in section 13 (4) of the Rent Ordinance in the absence of proper rebuttal or proof of mala fide, in view of learned counsel, was sufficient in law to entitle him to an order of eviction. The findings of Rent Controller on issues No.2 and 3 were objected to in appeal by the landlord. This he could do under Order XLI, rule 22 C.P.C. There was no need to file a separate appeal or cross objections to assail the findings recorded on these two issues when the order was substantially in his favour. Learned counsel stated that he could support the order of Rent Controller even on issues decided against him. Reliance was placed on Robert Cotton Association Ltd.v Firm Inayat Ullah and Co. Gujranwala PLD 1959 Lah. 178, Qutab-ud-Din v. Muhammad Siddique and others PLD 1969 Lah.
418, Messrs Yousaf and Co. v. Mst. Rashida Begum PLD 1975 Kar. 684, Najam Moin v. Riaz-ud-Din Ahmad etc. NLR 1980 Civil Lah. 540, Khairati and 4 others v. Aleem-ud-Din and others PLD 1973 SC
295. He also placed reliance on Muhammad Zamman v.Mahboob Elahi PLD 1981 Lah 609 to contend that in assessing the bona fides of the landlord fundamental importance. had to be attached to the statement of landlord who alone was the Judge of his own needs.
4. Learned counsel for the respondents submitted that default was not proved. He stated that the default alleged was for three months preceding the eviction application filed on 13-2-1971, there was no written agreement of tenancy. Agreement of tenancy relied on by the landlord had run out its period and consequently could not be taken to be a subsisting agreement as regards the date fixed for payment of monthly rent. In this view of the matter, it was contended that the tenant would be deemed to have defaulted only if he failed to tender/pay rent within a period of 60 days when the monthly rent became payable. As regards personal need and damage, learned counsel submitted that both the Courts below had concurrently found against the landlord. The findings of fact recorded by the Courts below on proper appreciation of evidence are not open to examination in constitutional jurisdiction by the High Court. The mere incorrectness of the decision would not open the door for interference in constitutional jurisdiction, in view of the rule of law enunciated in Muhammad Hassain Munir v. Sikandar and others PLD 1974 SC 139. Learned counsel also contended that two issues were found against landlord and in the absence of proper appeal or cross objections filed to challenge those findings, it was not permissible to the landlord to assail those findings in constitutional jurisdiction. He relied on the provision of law contained in Order XLI, rule 22, C.P.C. read with section 15 of the Rent Ordinance.
5. Perusal of the record shows that after the issues were framed the petitioner/landlord produced oral evidence. A.W.1 Hassan Muhammad and A.W.2 Karam Din appeared to support the personal need. Similar was the statement of the writ petitioner who appeared as A.W.6 before the Rent Controller. The statement made by learned Additional District Judge in his appellate judgment that there was only a solitary statement in support of the need apart from being factually incorrect, was erroneous in law also. The landlord was supported by two witnesses. Whatever the weight of their evidence was, it was the duty of the learned appellate Judge to consider and weigh this piece of evidence and then find out in the light of evidence available on record whether the landlord had succeeded to prove his bona fide need. In the absence of a second appeal to the High Court under Rent Ordinance, added judicial responsibility has devolved upon the first appellate Court to examine and assess evidence independently to arrive at correct reasoned judgment of its own to avoid leaving traces of resentment because the scope of interference in writ jurisdiction as is well established is ( extremely narrow. It has been observed by Narayan, J. in the case of Sailajananda Pandey v. Lakhichand Rao AIR 1951 Patna 503:- "It is regrettable that the final Court of fact did not apply itself properly to this case. As pointed out by my learned brother even the case of Nageshwar Bux v. Bengal Coal Company AIR (18) 1931 P.C.186:16 Pat.407 was not carefully read by the lower appellate Court. It has been repeatedly pointed out that the Legislature has entrusted a very important duty to the first appellate Court. It is for that Court to decide finally all questions of fact on which the disposal of the suit might depend, and as pointed out by Rowland, J. in Bhawad Singh v. Ujagir Singh AIR 1940 Pat. 33 the lower appellate Court has "to the best of his power to weigh and balance the evidence, facts and considerations, appearing on both sides". It must appear from the judgment of the lower appellate Court that it has made an honest endeavour to make a proper appraisement of the merits of the cases put forward by the parties, and it should never appear to the litigant public or to the superior Court that it has agreed with the trial Court, simply because it was not inclined to take much trouble over the case. Every litigant is entitled to have a decision from two Courts on questions of law and fact and if the lower appellate Court does not examine the facts and the evidence for itself and does not even mention the points which the case raises, it will be certainly failing in its duty."
' The learned Additional District Judge has not independently re-examined the material available on file for arriving at its own conclusion and, to speak with respect has misdirected himself in holding that the solitary statement of the landlord was not sufficient to find personal need proved in his favour. There is no law which states that number of witnesses are required to prove a fact. In fact the solitary statement of the landlord if it rings true and is sufficient to satisfy the judicial Conscience of the Court can safely be made the basis of eviction order. As observed in Muhammad Zaman v. Mehboob Elahi PLD 1981 Lah.609, fundamental importance is to be attached to the statement of the landlord which should, as his Lordship observed, be taken on its face value unless directly established to be untruthful. This statement of landlord has weight in the context of evidence brought on file by the parties and the safeguards provided under section 13 (1) of the Rent Ordinance. The landlord had succeeded before Rent Controller on issue of default alone and had failed on remaining two issues. Since the order of eviction was passed in his favour, he could not go in appeal under section 15 of the Ordinance. On the same reason, cross objections could not be filed. Filing of cross objection is co-related to a right of appeal. In such circumstances, when a decision is substantially in favour of a party but findings on one or more issues, go against him, in appeal by his opponent, he can support the order even on the issue found against him, in the absence of appeal or cross objections. There was no impediment in the way of landlord, therefore, to assail the findings on issues Nos. 2 and 3 before the learned appellate Judge in appeal filed by the tenant against eviction order. The appellate judgment when examined in the light of principles of law, stated above, shows lack of impact of legal exposition on the basic issues raised and required to be re-adjudicated upon. Writ petition is allowed, appellate judgment is set aside and is declared to have been passed without lawful authority. The case, therefore, is remanded for rehearing and its decision afresh by learned Additional District Judge on the material already available on record. Parties, in the circumstances of the case, are directed to bear their own costs.
Learned Additional District Judge is directed to decide the appeal afresh within a period of four months from the date the copy of the order is received by him.